Order Michigan Supreme Court
Lansing, Michigan
February 27, 2008 Clifford W. Taylor,
Chief Justice
135841 & (30) (31) (32) (35) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
DETROIT FREE PRESS INC., and Robert P. Young, Jr.
DETROIT NEWS, Stephen J. Markman,
Justices
Plaintiffs-Appellees,
v SC: 135841
COA: 283526
Wayne CC: 08-100214-CZ
CITY OF DETROIT,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for immediate consideration of the application
for leave to appeal and the motion to file a brief amicus curiae are GRANTED. The
application for leave to appeal the February 13, 2008 order of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded that the questions presented
should be reviewed by this Court. The Wayne Circuit Court did not err in concluding
that the Settlement Agreement (Deposition Exhibit 11) and the Notice of Rejection
(Deposition Exhibit 10) were “public records,” MCL 15.232(e), and subject to disclosure
pursuant to the Freedom of Information Act, MCL 15.231 et seq. Plaintiff Detroit Free
Press’s FOIA requests were sufficiently specific, see MCL 15.233(1) and Coblentz v
Novi, 475 Mich 558, 572-573 (2006), and there is no FOIA exemption for settlement
agreements. See, e.g., Coblentz, id. at 561. Moreover, a public body may not contract
away its obligations under the FOIA. Kent Co Deputy Sheriffs’ Ass’n v Kent Co Sheriff,
463 Mich 353, 361 (2000). In addition, the circuit court did not abuse its discretion when
it dissolved the non-disclosure provision in its previous order, and permitted, with one
redaction, the disclosure of the deposition in question.
The motion for stay is GRANTED to the extent that the Wayne Circuit Court’s
February 5, 2008 order granting the motion to disclose is STAYED pending the return of
the lower court record to that court. The motion to seal this Court’s record is GRANTED
to the extent that this Court’s file shall remain sealed until the release of documents as
ordered by the trial court.
2
KELLY, J., concurs and states as follows:
I concur in the decision to deny leave to appeal. But I write separately to discuss
the trial court’s decision to disclose the deposition transcript.
Under MCR 2.411(C)(5) statements made during the course of mediation are
confidential. In pertinent part, this rule provides:
(5) Confidentiality. Statements made during the mediation,
including statements made in written submissions, may not be used in any
other proceedings, including trial. Any communications between the
parties or counsel and the mediator relating to a mediation are confidential
and shall not be disclosed without the written consent of all parties . . . .
Here, at numerous points during the deposition, attorney Michael Stefani was
specifically questioned about incidents that occurred during court-ordered facilitation.
Because Stefani’s detailed recounting of events included “statements made during
mediation” and “communications between the parties or counsel,” I believe certain parts
of the deposition involved confidential communications under MCR 2.411(C)(5). But
the city of Detroit did not argue for the redaction of this testimony. Instead, it asked the
trial court to exempt the entire deposition from disclosure. Because most of the
deposition testimony does not fall within the parameters of MCR 2.411(C)(5), the trial
judge properly decided not to exempt the entire transcript from disclosure. And because
the city did not specifically argue for redaction, I conclude that the trial judge did not
abuse his discretion in not ordering redaction sua sponte.1
1
The trial court ruled that the confidentiality requirement of MCR 2.411(C)(5) is subject
to the crime-fraud exception discussed in People v Paasche, 207 Mich App 698, 705-706
(1994). I do not rely on the crime-fraud exception to conclude that the judge did not
abuse his discretion in ordering disclosure of the deposition transcript. Hence, I offer no
opinion on the applicability of the crime-fraud exception here.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 27, 2008 _________________________________________
p0226 Clerk